“What struck us as we reviewed the results of these forums was that
the attorneys’ responses — regardless of their number of years in
practice, size of firm, practice setting, etc. — were consistent on one
central point: They all were having a very difficult time
achieving a balanced life in the law. Again, we wish to
emphasize that when we refer to a balanced professional
and personal life, we embrace ... not only attention to private
interests, family and friends, but also involvement in
bar association, civic, and community activities, all of
which contribute to achieving a well-balanced life. …
Most felt that, at the time they decided to go to law school,
they didn’t fully appreciate the extent of the demands a
legal career would place on them.”

— New York State Bar Association’s “Final Report of
the Special Committee on Balanced Lives in the Law,”
March 7

As the recent NYSBA “Final Report of the Special Committee
on Balanced Lives in the Law” concluded, the law can be all
encompassing.

It’s always been that way, hence the saying “the law is a jealous
mistress.”

Attempting to balance one’s chosen career with other non-legal
obligations such as the demands of life outside of the office can
be a delicate and difficult balancing act for both male and female
lawyers.

Prior to becoming a lawyer, I didn’t give the idea of work/life
balance much thought. All I’ve ever really wanted to do is litigate.

I spent the first half of my life methodically planning and creating
a strong foundation for the first few years of my life as a litigator.
But, I was shortsighted and failed to consider that life
might throw me a curve ball when I least expected it — in my
case, just three weeks before my wedding, when the man I would
soon call my husband was diagnosed with testicular cancer.

Not surprisingly, that diagnosis changed me. It changed
everything.

I’d met the man I loved and was going to live happily ever after,
as both a lawyer and “wife,” much as that term annoyed me.
Maybe we’d have kids, too. Who knew?

And then, on that fateful day in April 1998, he was diagnosed
with testicular cancer. If he survived, there was a good chance we
would face fertility issues. Fertility issues, of all things — when
I wasn’t even sure I wanted kids. And, he might die,
although, we were assured his particular cancer was
“quite curable.” Apparently, we were supposed to feel
good about that.

I tried to feel hopeful, but it wasn’t easy. The most
difficult times of the day for me were the commutes to
and from work. I would find myself stuck in rush hour
traffic, seemingly unable to think of anything but the
horrible cancer that was invading his body and ruining
my marriage before it even began.

Once at work, I was fine (in large part due to the
support and understanding of my then-supervisor Jill
Paperno, for which I am eternally grateful).

My demanding schedule as an assistant public
defender kept my mind more than occupied during the day.
Immersing myself in my work seemed to do wonders for my
outlook, and at the time I prided myself in the fact that I’d
missed only two days of work throughout the entire course of his
treatment.

In retrospect, I was taking the easy way out. I avoided the difficult
task of confronting reality by convincing myself that my all-important
career came first. My husband attended appointments
alone, including the doctor’s visit where he was advised his cancer
was more serious than originally thought.

If I could do it all again, I’d have been by his side more often
throughout this trying time.

Judging from the results of the NYSBA’s study, I’m not alone in
my misgivings about the demands of my chosen career. Perhaps
the results and recommendations of the study will assist in bringing
about a much-needed change in the profession and in the attitudes
of those at the top of the legal ladder.

April 13, 2008

An outdated legal procedure that permitted a party to take and record the testimony of a witness before trial, but only when that testimony might otherwise be lost. For example, a party to a lawsuit might use the procedure to obtain the testimony of a witness who was terminally ill and might not be able to testify at the trial. Nowadays, the Federal Rules of Civil Procedure routinely permit the taking of testimony before trial if that testimony might otherwise be lost.

No one guessed this time around.

Today's term is:

words of procreation.

I'd never heard of this particular term before--I'd be interested in seeing if any of you have.

Plus, I figured it would likely lend itself to some creative definitions, which are always entertaining.

People v. Elysee, 49 A.D.3d 33, 847 N.Y.S.2d 654 (2d Dept. 2007) is an interesting case. The defendant was involved in an automobile accident which involved a fatality. Shortly thereafter, the defendant was transported to the hospital and a blood samples were obtained via a warrant.

The defendant moved to suppress the blood test results, making the novel argument that the seizure of his blood violated the physician-patient privilege.

The Court disagreed with the defendant’s assertion, holding that a blood specimen taken by a medical professional is not “information” protected by New York’s statutory physician-patient privilege:

In conclusion, there is nothing in the language of CPLR 4504(a) or in the case law interpreting it that supports its application to the physical blood samples at issue here. Moreover, there is simply no compelling public policy interest that would justify expanding the physician-patient privilege to a physical blood sample. To hold otherwise would deprive the jury of lawfully seized material and probative evidence. Thus, we conclude that the physician-patient privilege is not applicable to a physical blood sample drawn by a medical professional and lawfully seized pursuant to CPL 690.10. Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was to suppress the search warrant blood samples.

I haven't researched this issue, but if other Department's have not yet addressed this issue, it might be worth a shot. Another novel argument that I've seen made in other jurisdictions is that seizure of a blood sample violates HIPAA. I'm not sure if that argument has been made in New York, but again--it's worth a try.

April 10, 2008

Judge Kaye has thrown down the gauntlet and followed through on her promise to sue to enforce a pay increase for New York State judges. A copy of the Summons and Complaint can be accessed here.

As reported in this article from the New York Law Journal, the lawsuit was filed in Manhattan Supreme Court just one day after the legislature failed to include a pay raise for New York judges in the state's budget.

As explained in the article:

The suit...argues that the governor and the Legislature, by failing to enact a raise for the state's 1,300 judges, have failed to uphold their constitutional obligation to provide for an independent judiciary. The complaint also contends that the other branches of government have effectively come to violate a provision of the state Constitution prohibiting the pay of judges from being diminished...

Two other suits for higher judicial pay are also before state courts. The actions, filed by individual judges and supported by some judicial organizations, are on appeal before the Appellate Divisions in the First and Third departments. Supreme Court justices allowed the claims to go forward in each case on the separation-of-powers argument that Mr. Nussbaum also makes in Chief Judge Kaye's suit.

What an interesting development. I can't wait to see how it plays out.

Rapid technological advancements have changed the way the
world functions; the practice of law has not been exempt from this
change. The landscape of the legal field has been dramatically
altered by the advent of high-speed Internet, email,
data phones, and remote office capabilities. Law firms
are now grappling with issues of e-Discovery and e-filing is becoming commonplace.

Technology has made the practice of law simpler for
some, while other attorneys find themselves struggling
to keep up with the changes or, alternatively, ignoring technology
in the futile hope that it will simply disappear.

The fact remains, however, that technology is here to stay. In
order to succeed in a rapidly evolving marketplace, lawyers must
embrace change and learn to use technology to their advantage.

Computers and the Internet can be used to improve all aspects
of a law practice. The Internet and data phones allow lawyers to
obtain information anywhere, anytime. Office servers can be
accessed remotely on data phones or home computers, thus allow-
ing lawyers timesaving flexibility. A lawyer in the middle of trial
can now step into the hallway and conduct legal research via a
data phone.

Vast amounts of information relevant to the practice of law can be
obtained online. In addition to the traditional Web-based legal
research companies such as Westlaw and Lexis-Nexis, there are
now low-cost Web-based research alternatives available.

And, if you know where to look, large amounts of information can be accessed online at no cost, including case law, both federal (1997-present) and New York (from 1995 to the present). New York and federal rules and regulations are also available, as are New York State Attorney General opinions and the 2007 Codes of New York State.

Online resources can keep attorneys current and on top of
changes in their specific areas of practice as well. Online news articles and legal blogs are great tools in this regard.

There is also a vast assortment of cutting-edge resources avail-
able on the Internet to assist attorneys in managing their productivity and their law practices. There are low cost Web-based practice management systems that can replace
traditional software. Free Web-based email, calendaring systems, word-processing, and phone and fax sys-
tems can replace traditional and costly alternatives.

Networking opportunities abound online. Between listservs, professional networking sites such as LinkedIn and
social networking sites such as Facebook, lawyers have
more opportunities than ever to interact with and learn
from lawyers across the country.

Of course, technological change has made certain
aspects of legal practice more difficult and confusing. The
most evident example of this is the ever-prevalent issue
of E-discovery. Since the amendment of the Federal
Rules of Civil Procedure in December 2006, businesses and their
lawyers have struggled to respond to e-Discovery requests and to
alter their business practices in order to preserve e-data and thus
avoid sanctions under the new rules.

Fortunately, there are a number of free and useful resources on the
Internet, which can assist attorneys in complying with the new rules.
In addition, there are companies that now assist businesses with the e-
Discovery process, such as DocuLegal.

There is no question that technology has transformed the legal
profession and will continue to do so in the future. Rather than
keeping your head in the sand, why not embrace technological
changes and learn to use them to your advantage? The short-term
investment will be minimal and the long-term pay off will be huge
— not a bad trade-off, all things considered.

April 06, 2008

Latin for "we shall no longer prosecute." At trial, this is an entry made on the record by a prosecutor in a criminal case stating that he will no longer pursue the matter. An entry of nolle prosequi may be made at any time after charges are brought and before a verdict is returned or a plea entered. Essentially, it is an admission on the part of the prosecution that some aspect of its case against the defendant has fallen apart. Most of the time, prosecutors need a judge’s permission to “nol-pros” a case. (See Federal Rule of Criminal Procedure 48a.) Abbreviated “nol. pros.” or “nol-pros.”

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